Mining News

Date: Fri, 2 Nov 2012 11:20:02 -0700
From: mstopher@dfg.ca.gov
To: MStopher@dfg.ca.gov
Subject: Suction Dredge update November 2, 2012

Interested Parties:

As the end of 2012 draws near I have been receiving regular inquiries whether the Department of Fish and Game will be selling permits in January 2013. Here is where things stand in the moment.

First, the statutory moratorium on instream suction dredge mining in California and the issuance of related permits by the Department remains in effect. (Fish & G. Code, § 5653.1.) This is true even though the Department adopted new regulations governing its permitting program and the Office of Adminstrative Law approved those regulations in April 2012. You can access those regulations at http://www.dfg.ca.gov/suctiondredge/. The statutory moratorium overrides the new regulations and the authority of the Department to sell suction dredge permits.

The moratorium, as updated with the enactment of SB 1018 in June 2012, directs the Department to take specific actions and submit a related report to the California Legislature on or before April 1, 2013. SB 1018 provides in particular:

"[T]he department shall consult with other agencies as it determines to be necessary, including, but not limited to, the State Water Resources Control Board, the State Department of Public Health, and the Native American Heritage Commission, and, on or before April 1, 2013, [it] shall prepare and submit to the Legislature a report with recommendations on statutory changes or authorizations that, in the determination of the department, are necessary to develop the suction dredge regulations required by paragraph (2) of subdivision (b), including, but not limited to, recommendations relating to the mitigation of all identified significant environmental impacts and a fee structure that will fully cover all program costs." (Fish & G. Code, § 5653.1, subd. (c).)

The Department has begun its effort to comply with this requirement and expects to submit its report to the Legislature on schedule. It seems reasonable to assume the Legislature will take no further action related to suction dredging under the Fish and Game Code until the Department submits its report next spring. The Department assumes for the same reason that the current moratorium will remain in effect until at least that time.

Many of you know related litigation continues. Six of thirteen actions filed against the Department since May 2005 remain pending. These cases were originally filed in Alameda, San Bernardino, and Siskiyou Counties. In a recent development, on October 25, 2012, the Judicial Council of California issued a order signed by Chief Justice Cantil-Sakauye. The order directs and authorizes the Presiding Judge in San Bernardino County Superior Court to assign a trial judge in San Bernardino County to oversee and address all six pending actions as a single, coordinated proceeding. Until that happens, further proceedings in the litigation are stayed by court order and the California Rules of Court. The Department expects no developments in the litigation until the assigned trial court judge holds an initial case management conference in the coordinated proceedings at some time in the next couple of months. At some point in the future, the Court could take an action which affects the moratorium but that seems unlikely to happen for at least a few months. The Department cannot predict when or how the Court will rule on any of the challenging issues before it.

I hope this information is useful to you.
Mark Stopher
Senior Policy Advisor
California Department of Fish and Game
601 Locust Street
Redding, CA 96001

voice 530.225.2275
fax 530.225.2391
cell 530.945.1344
mstopher@dfg.ca.gov